Article by Richard Samet Revisions Final

8/8/2019 Article by Richard Samet Revisions Final

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Survey of Liability for Criminal Assaults by Third Parties

By Richard S. Samet and D. Tyler Hawks ©2007

With Thanks to Stephen B. Royalty, Esquire, for his willingness to discuss the issues andhis experience in arguing Dudas v. Glenwood Golf Course, Inc., and other valuable

assistance.

I. INTRODUCTION

Recently the body of law that addresses the liability of business and land owners for the

criminal attacks of third parties on their premises has changed in Virginia. The intended scope

of this article is to familiarize the reader with these changes, as well as with the body of law from

which the rulings were derived.

Historically, Virginia jurisprudence has not allowed the imposition of liability of business

and land owners for the criminal acts of third parties against business invitees. 1 The basis of this

doctrine was foreseeability, and the concept that one should not have to shoulder the burden of

liability for failing to anticipate the criminal conduct of persons over whom one could exert no

control2. Criminal conduct was considered too unpredictable and thus not susceptible to

prevention by reasonable means. In light of the burden and expense involved in attempting to

prevent all but expected or imminent attacks, no such duty would be imposed on a landowner.3

The Virginia Supreme Court, however, has carved out numerous exceptions. One particular

exception is the duty that arises out of a special relationship between either the defendant and the

injured party or the defendant and the third party tortfeasor 4. Special relationships creating a

1 See, e.g. Wright v. Webb, 234 Va. 527, 531-33, 362 S.E.2d 919 (1987).

2 See, Dudas v. Glenwood Golf Club, 261 Va. 133, 540 S.E.2d 129 (2001); Delk v. Columbia/HCA Healthcare

Corp., 259 Va. 125, 523 S.E.2d 826 (2000).

3 Wright v. Webb, 234 Va. 527, 531-33, 362 S.E.2d 919 (1987).

4 Gupton v. Quicke, 247 Va. 362, 442 S.E.2d 658 (1994); Thompson v. Skate America, 261 Va. 121, 129-130, 540

S.E.2d 123, ___(2001); Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 523 S.E.2d 826 (2000); §314(A),

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duty of care have been found to arise out of the interactions between landlord and tenant 5,

common carrier and passenger 6, and innkeeper and guest7. More recently, under certain

circumstances, business invitees have also been extended a duty of care of business owners to

prevent third party attacks.8

In each of these areas the law evolved somewhat differently, yet the tests in each case

were relatively consistent. First, a special relationship had to be established, thus creating a duty

of care. Second, the plaintiff was required to show that the defendant either knew or should have

known that a criminal assault was foreseeable9. In defining foreseeability the court consistently

ruled that a history of previous criminal and assaultive activity at or near the location of the

attack in question was too nebulous to constitute notice.10 The risk of harm to a business invitee

was foreseeable only in cases in which a physical confrontation had already commenced, 11 a

Restatement (Second) of Torts (1965); §344 Restatement (Second) Torts (1965).

5 Yuzefovsky v. St. John's Wood Apts., 261 Va. 97, 102, 540 S.E.2d 134, 136-37 (2001); Klingbeil Management

Group, 233 Va. at 448, 357 S.E.2d at 201; Gulf Reston, Inc. v. Rogers, 215 Va. 155, 158, 207 S.E.2d 841, 844

(1974); See, §314(A), Restatement (Second) of Torts (1965); §344 Restatement (Second) Torts (1965).

6 Connell v. Chesapeake and Ohio Ry. Co., 93 Va. 44, 55, 24 S.E. 467, 468 (1896).

7 Kirby v. Moehlman, 182 Va. 876, 30 S.E.2d 548 (1944); Crosswhite v. Shelby Operating Corp, 182 Va. 713, 30

S.E.2d 673 (1944).

8 Gupton v. Quicke, 247 Va. 362, 442 S.E.2d 658 (1994); Thompson v. Skate America, 261 Va. 121, 129-130, 540

S.E.2d 123, ___(2001).

9 A.H. v. Rockingham Publishing Co., 255 Va. 216, 220, 495 S.E.2d 482, 485 (1998), Yuzefovsky v. St. John's Wood

Apts., 261 Va. 97, 102, 540 S.E.2d 134, 136-37 (2001); Klingbeil Management Group , 233 Va. at 448, 357 S.E.2d at201; Gulf Reston, Inc. v. Rogers, 215 Va. 155, 158, 207 S.E.2d 841, 844 (1974); Norfolk & W. R. Co. v. Birchfield,

105 Va. 809, 54 S.E. 879, (1906); Virginia R. & P. Co. v. McDemmick , 117 Va. 862, 870, 86 S.E. 744, 747 (1915);Connell v. Chesapeake and Ohio Ry. Co., 93 Va. 44, 55, 24 S.E. 467, 468 (1896) ; Gupton v. Quicke, 247 Va. 362,

442 S.E.2d 658 (1994); Thompson v. Skate America, 261 Va. 121, 129-130, 540 S.E.2d 123, ___(2001).

10 Wright v. Webb, 234 Va. 527, 531-33, 362 S.E.2d 919 (1987); Yuzefovsky v. St. John's Wood Apts., 261 Va. 97,

102, 540 S.E.2d 134, 136-37 (2001); Dudas v. Glenwood Golf Club, 261 Va. 133, 540 S.E.2d 129 (2001); Rosen v.

Red Roof Inns, Inc., 950 F. Supp. 156, 159 (E.D. Va. 1997); Godfrey v. Boddie-Noell Enterprises, Inc., 843 F. Supp.

114, 120 (E.D. Va. 1994); Cf, Thompson v. Skate America, 261 Va. 121, 129-130, 540 S.E.2d 123, ___(2001).

11 Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879, (1906); Gupton v. Quicke, 247 Va. 362, 442 S.E.2d

658 (1994); Cf, Virginia R. & P. Co. v. McDemmick , 117 Va. 862, 870, 86 S.E. 744, 747 (1915).

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specific and identifiable person at the business was known to be a danger to other patrons, 12 or

the defendant proactively placed the injured party in harm’s way.13

Recently, however, the Virginia Supreme Court ruled in Taboada v. Daly Seven, Inc. that

an innkeeper has a legal duty to protect its guests from criminal assaults by third parties that

arises out of a history of criminal activity on and around the innkeeper’s premises. 14 The Court

in resolving the special relationship test ruled that vis-à-vis an innkeeper and its guests, the

innkeeper is analogous to a common carrier and guests to passengers. In so doing, the Court

expressly rejected the analogies of the relationships of a business/business invitee and landlord/

tenant.

15

In then resolving the issue of foreseeability, the Court relied upon a history of criminal

activity on or near the premises of an innkeeper as a predicate to liability of an innkeeper for

assault by strangers upon a registered guest. That history of criminal activity was, for the first

time in Virginia, ruled to provide notice to the innkeeper that an imminent risk of harm to its

guests existed. Thus arises the duty of the innkeeper to protect its guests from that risk of

harm.16 The previous test for notice, the existence of an imminent and present danger as well as

a specific risk of a precise harm, was found in Taboada to be satisfied if an attack is merely

12 Thompson v. Skate America, 261 Va. 121, 129-130, 540 S.E.2d 123, ___(2001).

13 Hines v. Garrett , 131 Va. 125, 108 S.E. 690 (1921); Houston v. Strickland, 184 Va. 994, 37 S.E.2d 64 (1946).

14 Taboada v. Daly Seven, Inc., 271 Va. 313, 626 S.E.2d 428 (2006). The case also involved a claim that Code of

Virginia §35.1-28 (Michie 1996) created a duty of care. The Virginia Supreme Court affirmed the demurrer to that

claim.

15 Taboada v. Daly Seven, Inc., 271 Va. 313, 325, 626 S.E.2d 428, ___ (2006).

16 “[I] t is reasonable for the law to impose upon the innkeeper, as on the common carrier, a duty to take reasonable

precautions to protect his guests against injury caused by the criminal conduct on the part other guests or strangers,

if the danger of injury by such conduct is known to the innkeeper or reasonably foreseeable.” Taboada v. Daly

Seven, Inc., 271 Va. 313, 325-26, 626 S.E.2d 428, ___ (2006).

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reasonably foreseeable.17 This duty, which is much broader than that in Section 314(A) of the

Restatement (Second) of Torts (1965), as well as Sections 315 and 344, had been previously

considered and expressly rejected in nearly all areas of special relationships, including Wright v.

Webb,18 which was previously the touchstone case in cases involving liability for criminal third

party acts.

Finally, once the duty and notice have been established the innkeeper is then constrained

under Taboada to exercise the “utmost diligence” to prevent injury to its guests, rather than

reasonable care.19

II. INNKEEPERS AND INVITEES

The duty that arises out of the special relationship between innkeepers and their guests is

not a new development. However, liability for latent defects in the premises, not the criminal

acts of third parties, was the most common point of contention.20 Such defects, once an

innkeeper realizes they exist, can be “easily removed” and corrected.21 Hence the issue of the

business owner’s control over the conditions that could lead to injury is again central to the

existence of a duty to the guest. The risk of assault, by comparison, is not so easily removed.22

Even the best efforts of an innkeeper at preventing assaults cannot provide the same resolution of

17 Taboada v. Daly Seven, Inc., 271 Va. 313, 325-26, 626 S.E.2d 428, ___ (2006).

18 Wright v. Webb, 234 Va. 527, 531-33, 362 S.E.2d 919 (1987).

19 Taboada v. Daly Seven, Inc., 271 Va. 313, 325-26, 626 S.E.2d 428, ___ (2006).

20 Crosswhite v. Shelby Operating Corp., 182 Va. 713, 715, 30 S.E. 2d 673, 674 (1944); Kirby v. Moehlman, 182

Va. 876, 30 S.E.2d 548 (1944).

21 Kirby v. Moehlman, 182 Va. 876, 887, 30 S.E.2d 548, ____ (1944); Crosswhite v. Shelby Operating Corp., 182

Va. 713, 715, 30 S.E. 2d 673, 674 (1944).

22 Wright v. Webb, 234 Va. 527, 533, 362 S.E.2d 919, 921 (1987).

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danger that removing a damaged rocking chair or reinforcing a screen would provide.23 These

efforts are more like the opportunity of a common carrier to remove or neutralize a violent and

threatening passenger or to make sure that a passenger is deposited at an appropriate location. 24

Furthermore, the condition, repair, and removal of defective rocking chairs, screens and other

structures of the inn is much like the maintenance, care, and inspection of the engines, cars, rails

and ties of a railroad.25 The Virginia Supreme Court did not impose liability on a railroad in the

instance of rails that could have an incipient defect, leading to sudden failure, but without any

way to determine where or when that failure would occur.26 While rails may fail from time to

time, the prediction of where and when was deemed an unfair burden to place upon the owner of

the rails, much like a criminal assault27. Again, it is the element of control and of ability to cure

the defect that either creates or defeats a duty to act on behalf of a guest or passenger.

1. Gupton v. Quicke

The Courts have applied, under the lesser duty of a business owner to an invitee, what is

effectively actual knowledge of the development of a situation that has imminent risk of harm to

a patron. For example, the risk of “imminent harm” was found where the employees of a café

allowed a violent and threatening patron, who had been in a confrontation with another patron, to

re-enter the café after being thrown out.28 Prior to his re-entry, the violent patron stated

repeatedly that he intended to assault the individual still within the café. Upon reentry, staying

true to his declaration, the third party directly approached the patron and attacked him. The

23 See, Id.

24 Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879, (1906).

25 See, Chesapeake and Ohio R. Co. v. Baker, 149 Va. 54, 555, 141 S.E. 753(1927).

26 Id.

27 Wright 234 Va. at 533, 362 S.E.2d at 921.

28 Gupton v. Quicke, 247 Va. 362, 363, 442 S.E.2d 658 (1994).

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Virginia Supreme Court, in reversing the trial court’s dismissal on demurrer, stated that the

defendant’s knowledge of the stated intentions of the assailant created a duty to exercise

reasonable care to prevent the violent patron from injuring the other patron. 29 The violent

patron’s declaration amounted to notice that “imminent probability of harm” “was about to occur

inside the café. In doing so, the Court adopted the rationale of the Wright court.30 In essence, the

café had a duty to the victimized patron because the bouncer had control of the situation. The

bouncer not only knew of the altercation and the threats of violence against an invitee, but

additionally had control of the assailant himself.

2. Dudas v. Glenwood Golf Club, Inc.

During the same term that the Virginia Supreme Court decided Gupton, the Court also

decided Dudas v. Glenwood Golf Club, Inc.31 Dudas, a golfer, was robbed and shot in the leg

while playing on a golf course that had been plagued by repeated robberies of its guests. The

three most recent attacks, including one with gunfire, had occurred less than a month before Mr.

Dudas was injured. Dudas argued to the trial court that the history of attacks provided notice to

the golf course of the risk of injury to its guests at the hands of third parties. However, summary

judgment was awarded to the golf course and Dudas appealed.32

The Virginia Supreme Court stated the sole premise of Dudas’ theory of liability and

recovery was the forseeability of the assault. The Court stated, “we have stressed that whether a

duty of care arises from a special relationship between a business invitor and its invitee regarding

a criminal assault by a third party committed on the premises so as to qualify as an exception to

29 Id. citing Wright.

30 Gupton v. Quicke, 247 Va. 362, 363, 442 S.E.2d 658 (1994).

31 Dudas v. Glenwood Golf Club, 261 Va. 133, 540 S.E.2d 129 (2001).


6



the general rule of nonliability, involves a fact specific determination.”33 In making a fact

specific determination, the Court examined the similarity and chronological proximity of prior

crimes on the golf course. The Court declined to find that the prior criminal assaults on guests

imposed upon the golf course a duty to protect future guests from the risk of harm.34 In fact, the

Court declined to impose a duty to warn, citing the burden to the business in doing so. 35

Foreseeability, again, did not arise out of a general set of conditions of the location in question.

Forseeability was determined by a very specific threat that called for immediate intervention by

one with enough control over the situation to act upon it. 36 The Court reasoned that “the

magnitude of the burden of guarding against harm to the plaintiff and the consequences of

placing the burden on the business owner before imposing a duty to protect its invitees. . .

certainly, in the case of an 18 hole golf course, which is necessarily an extensive and open tract

of land, generally having at many points uncontrolled access from other property and public

ways, the cost of guarding against occasional criminal trespassers would be unduly great. Thus,

because the facts do not establish that there was an imminent probability of harm to Dudas from

a criminal assault by an unknown third party and it would have been unduly burdensome to

require Glenwood golf club to post a security force for his protection, we hold that Glenwood

golf course owned no duty to protect Dudas from the danger of injury from such an assault.” 37

The Court also declined a duty to warn because it would result in harm to reputation and loss of

trade.38


34 Dudas, 261 Va. at 139, 540 S.E.2d at ___.

35 Dudas, 261 Va. at 139, 540 S.E.2d at ___.

36 Dudas, 261 Va. at 139, 540 S.E.2d at ___.

37 Id.

38 Id.

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3. Thompson v. Skate America, Inc.

Thompson was cited in Dudas as an example of a specific threat, rising to the level of

notice, to patrons.39 Thompson was injured by another youth who frequented Skate America and

was a known troublemaker. The youth had been thrown out of Skate America numerous times,

and had regularly demonstrated assaultive and violent behavior. Because Skate America was

aware of the very specific history of the individual, the Court reasoned that Skate America

assumed the risk in allowing this particular person to enter its premises. The Court found that

such an assumption imposed a duty to warn other patrons or to act to prevent the injury

sustained.

40

In contrast to Thompson, the golf course in Dudas attempted to exert control over

unknown third parties over the vast, open, and easily accessible areas of a golf course. The risk

of allowing the known attacker in Thompson into the relatively small area of Skate America was

considered and balanced.41

III. TABOADA v. DALY SEVEN, INC .

The plaintiff in Taboada was a traveler who had stopped for the night at a price-point

marketed motel in Roanoke, Virginia. The plaintiff checked in and then returned to his car to

retrieve his luggage at approximately 2:00 a.m. He was thereafter accosted in the motel parking

lot and shot eight times. When he filed suit against the innkeeper, he ultimately alleged the

following:

1. That he relied on representations that the motel was in a safe neighborhood when it

was in fact in a high crime area;


40 Thompson v. Skate America, Inc., 261 Va. 121, 130 540 S.E.2d 123, 127 (2001).

41 Dudas, 261 Va. at 140-41, 540 S.E.2d at ___.

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2. That the innkeeper knew or should have known that the motel attracted assaultive

crimes by third parties;

3. That assaultive crimes were occurring, had occurred, and would continue to occur;

4. That the motel provided a known target for repeat criminal activity;

5. That the local police department had informed the motel’s management that its guests

were at risk for a specific imminent harm to their persons;

6. That the motel should have had guards on duty from 10:00 pm to 4:00 am, seven days

a week to protect its guests from the known risk of imminent harm from assaults; and

7. That it should have had cameras in place to identify criminal activity that might occur

near the front doors between 10:00 pm and 4:00 am42

The Roanoke Circuit Court, despite agreeing with the plaintiff that a special relationship

existed between the innkeeper and the guest, twice sustained the demurrers of the defendant

based upon lack of notice of imminent harm. As used in previous cases, such as Wright , the

business owner had to be on notice that crimes were actually under way that prompt intervention

would not prevent, but interrupt.43 The trial court ruled that the common law of Virginia did not

hold a history of criminal assaults to be specific or immediate enough to allow the case to

42 Taboada v. Daly Seven, Inc., 23 Cir. CL031075, 65 Va. Cir. 336 (2004).

43 Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879 (1906).

9



proceed.44 The trial court specifically cited Wright v. Webb,45 and applied it to determine that the

innkeeper did not have a duty to protect the guest from the intentional criminal assault of a non-

employee. The allegations were deficient because the innkeeper claimed not to have known that

“criminal assaults against persons were occurring or about to occur on the premises which

indicated that in imminent probability of harm and that such knowledge constituted notice of a

specify danger just prior to the assault.”

The trial court’s written opinion sustaining the first demurrer provided the plaintiff with a

check list of facts that, if alleged, would have stated a common law cause of action. In order to

state a viable claim, the plaintiff was required to set forth facts from which the court could at

least infer that the defendant:

• [S] hould have foreseen the type of criminal activity of which Taboada

was a victim, or was, or should have been, aware of a specific threat, or of

sufficiently similar and recent criminal assaults committed on the hotel's property,or of sufficiently similar and recent criminal assaults committed at the Holiday

Inn Express, constituting an imminent probability of harm.46(emphasis added).

Despite following the format provided by the trial court, the plaintiff’s Amended Motion

for Judgment also lacked specificity. Rather than reciting specific facts regarding the assault

which left the plaintiff injured, he provided a general history of a wide range of criminal activity

and broad and conclusory statements including, “criminal assaults against employees and guests

44 Taboada v. Daly Seven, Inc., 23 Cir. CL031075, 65 Va. Cir. 336 (2004)(“The allegation that the hotel knew or

should have known that its guests were at risk for such attacks is a bare conclusion, bereft of any assertion of facts

from which the court could draw the inferences in his favor.” Also “Nor are there any factual assertions from whichI can draw the inference that Daly Seven knew that there was any likelihood that guests were in imminent danger of

assault.”).

45 Taboada v. Daly Seven, Inc., 23 Cir. CL031075, 65 Va. Cir. 336 (2004) “The Court developed this rule by

applying its historically higher “common carrier” duty in the business invitor/invitee context, thus signaling that thisstandard is appropriate for comparable special relationships, including that of innkeeper and guest. Wright , 234 Va.

at 533.


10



were occurring,”47 following the form of the previous cases but ignoring the substance therein.

The trial court again sustained the demurrer of the defendant, finding a lack of notice.

The Virginia Supreme Court disagreed, overturned the demurrer to the common law claim, and

remanded the matter for trial on the merits.48

In summary, the elements of the decision in Taboada are as follow:

1. Daly Seven, Inc., as an innkeeper, had a special relationship with Taboada, but

that relationship did not make it the insurer of his safety49; and

2. As opposed to an invitee or a tenant, a guest is owed the identical higher duty of

care against attack by third parties that a common carrier owes a passenger 50; and

3. The guest/innkeeper relationship is more like that of a passenger/common carrier

than the relationships of invitees and tenants to businesses and landlords51; and

4. Because a guest of an inn entrusts his safety to the innkeeper and has little ability

to control his environment, the law imposes on the innkeeper a duty to take reasonable

precautions against conduct that is known and foreseeable52; and

5. Given the nature of the special relationship between the innkeeper and the guest,

the law imposes on the innkeeper the same potentially elevated duty of utmost care and diligence

to protect a guest from the danger of injury caused by the criminal conduct of a third party on theinnkeeper’s property53; and

6 For the purposes of determining this duty, “notice of a specific danger” equateswith the concept of “reasonably foreseeable and not with the degree of knowledge of criminal

assaults that indicate an ‘imminent probability of harm.’’54

47 See, Yuzefovsky v. St. John's Wood Apts., 261 Va. 97, 109, 540 S.E.2d 134, 136-37 (2001).


49 Id ., 271 Va. at 326, 626 S.E.2d at ___.

50 Id ., 271 Va. at 326, 626 S.E.2d at ___.

51 Id ., 271 Va. At 326, 626 S.E.2d at ___.

52 Id ., 271 Va. At 325, 626 S.E.2d at ___.

53 Id ., 271 Va. At 326, 626 S.E.2d at ___.

54 Id ., 271 Va. At 326, 626 S.E.2d at ___.

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To a certain extent the Court narrowed the decision by stating that it was “not retreating

from the holding in Wright ,” 55 but was in fact limiting its consideration only to the whether the

facts alleged were sufficient to survive the demurrer. 56

The intended or unintended result, however, is that innkeepers now appear to be held to a

higher standard of care than that applied to common carriers.57 Innkeepers must now take pre-

emptive steps to assure the safety of their guests against the criminal attacks of strangers at any

point within their property, a duty which has never been imposed upon common carriers as non-

contemporaneous criminal activity has not previously been found to place a carrier on notice of

an imminent harm to a passenger.

58

In addition, once the plaintiff alleges a history of local criminal activity, the innkeeper

can be found to have a duty that, arguably, even the slightest negligence would violate. These

new burdens on innkeepers depart dramatically from the previously relied upon line of cases,

most notably Wright v. Webb.59 Thus, the Court has created a dual track in Virginia law

regarding land and business owners’ liability regarding criminal activity against their customers.

The factual allegations made by the plaintiff in Taboada were broad, vague and ignored

55 Id ., 271 Va. At 326, 626 S.E.2d at ___.

56 Id ., 271 Va. At 326, 626 S.E.2d at ___.

57 “Given the nature of the special relationship between an innkeeper and a guest, we hold that it imposes on the

innkeeper the same potential elevated duty of ‘utmost care and diligence’ to protect a guest from the danger of

injury caused by the criminal conduct of a third person on the innkeeper’s property. Id ., 271 Va. at 326, 626 S.E.2d

at ___.

58 Hines v. Garrett , 131 Va. 125, 108 S.E. 690 (1921), which was cited in Taboada, did not establish notice based

on a history of the area, but relied rather on the railroad’s failure to provide proper carriage to a designated station.

This is discussed in greater detail below.

59 Webb, 234 Va. 527, 362 S.E.2d 919 (1987)

12



contextual application of terms used therein. As a result, the boundaries of what constitutes a

history sufficient to be deemed notice to a property owner remain undefined.60

IV. WRIGHT v. WEBB

Wright v. Webb is the seminal case involving liability of land and business owners for the

criminal attacks on guests by third parties. The case arose out of the attack of a business invitee

in a parking lot shared by a motel and a dinner theater. The plaintiff, Webb, alleged that the

owners of the parking lot were negligent for failing to install adequate exterior lighting, fencing,

security cameras, perimeter patrols and speed bumps to protect business invitees against

foreseeable criminal attacks. The plaintiff further alleged that the area had a history of larcenies

(at least one or two per month), prior physical assaults, and a double murder at a neighboring

golf course.

The attack which prompted the lawsuit occurred in the shared parking lot of a commonly

owned motel and dinner theater. The plaintiff entered the motel to ask directions and upon

leaving the motel was attacked on her way to the dinner theater.

The plaintiff urged the Court to adopt the Restatement (Second) of Torts, § 314(A)

(1965) and to thereby impose a duty on the innkeeper to protect her from criminal assaults. She

sought to establish that she and innkeeper had the special relationship of business and invitee,

and thus that the business was under a duty to protect her, an invitee, from harm by third

parties.61 The Court refused to impose on the landowner or business the burden of acting as a


61 Wright v. Webb, 234 Va. 527, 530, 362 S.E.2d 919, ___ (1987). The Court had been asked to consider the

adoption of §314(A) previously, and had declined to do so. Klingbeil Management Group Co. v. Vito, 233 Va. 445,

447, 357 S.E.2d 200, 201 (1987) and Gulf Reston, Inc. v. Rogers, 215 Va. 155, 158, 207 S.E.2d 841, 844 (1974).

13



“policeman”. To arrive at such a conclusion, the Court discussed the magnitude of the burden to

anticipate and to guard against criminal assaultive behavior.62

Webb cited the same common carrier cases that form the basis of the majority opinion in

Taboada.63 She asked the Virginia Supreme Court to apply that level of care to business owners

to protect their patrons from the criminal acts of third parties. The Virginia Supreme Court

rejected the plaintiff’s analogy.64

Webb asked the Court to rule that the historical level of criminal activity around the Lake

Wright complex rose to the level of imminent risk of harm to business invitees and thus created a

duty upon the owner to prevent assaults. However, the Court focused upon the impossibility of

anticipating when a criminal attack would occur. Consequently, the Court specifically declined

plaintiff’s request that it find that previous criminal activity, without more, made a criminal

attack foreseeable.65

V. THE RESTATEMENT (SECOND) OF TORTS

The Restatement (Second) of Torts, Section 314(A) and Section 344, have been discussed

by the Virginia Supreme Court in the context of the issue of liability for acts of third parties:

Section 314(A) has been examined numerous times by the Virginia Supreme Court, but has been

expressly declined. The section provides in relevant part that “a common carrier is under a duty

to its passengers to take reasonable actions (a) to protect them against unreasonable risk of

physical harm, and (b) to give them first aid after it knows or had reason to know that they are ill

or injured, and to care for them until they can be cared for by others (2) An innkeeper is under a

62 Wright v. Webb, 234 Va. 527, 530-31, 362 S.E.2d 919, ___ (1987).

63 Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879, (1906); Virginia R. & P. Co. v. McDemmick , 117

Va. 862, 870, 86 S.E. 744, 747 (1915); Hines v. Garrett , 131 Va. 125, 108 S.E. 690 (1921).



14



similar duty to its guests. (3) A possessor of land who holds it open to the public is under a

similar duty to members of the public who enter in response to his invitation. When the Virginia

Supreme Court addressed this language in Wright v. Webb, it reasoned, “in ordinary

circumstances, acts of assaultive criminal behavior cannot reasonably be foreseen.” 66 The Court

also addressed the very practical matter of crime prevention, stating that the best deterrent to

criminal acts of violence is the posting of a security force in the area of potential assaults.

However, in most cases the cost would be prohibitive and unfair to impose upon the invitor,

who, like the invitee, was an innocent victim of the criminal third party.67

Section 344 of the Restatement was referred to in the concurrence to Wright .

68

It

provides in pertinent part that “a possessor of land who holds it open to the public for entry for

his business purposes is subject to liability to members of the public while they are upon the land

for such a purpose, for physical harm caused by the accidental negligent or intentionally harmful

acts of third persons or animals and by failure of the possessor to exercise reasonable care to (a)

discover that such acts are being done or are likely to be done, or (b) give a warning adequate to

enable the visitors to avoid the harm, or otherwise to protect them against it.” The first comment

to this section provides that the rule had its origin in cases of carriers who failed to protect their

passengers against the acts of third persons. As it has developed, however, it no longer is limited

to carriers, and it applies to other businesses as well. Thus, without expressly stating it, the rule

appears to create a special relationship between a business and an invitee, but does not require

the exercise of utmost diligence that arises under Taboada. In the comments, the drafters of the

Restatement did offer a limitation. “Since the possessor is not an insurer of the visitor’s safety,

66 Wright v. Webb, 234 Va. 527, 531, 362 S.E.2d 919, ___ (1987).

67 234 Va. 527, 531, 362 S.E.2d 919, ___ (1987).

68 234 Va. 527, 534, 362 S.E.2d 919, ___ (1987).

15



he is ordinarily under no duty to exercise any care until he knows or has reason to know that the

acts of the third person are occurring, or are about to occur. He may, however, know or have

reason to know, from past experience, that there is a likelihood of conduct on the part of third

persons in general which is likely to endanger the safety of the visitor, even though he has no

reason to expect it on the part of any particular individual.” Justice Poff also included a list of

jurisdictions that have adopted and those that have declined §344 of the Restatement (Second) of

Torts. 69Despite its similarity to the ruling in Taboada, §344 of the Restatement was never

adopted by the Virginia Supreme Court, and, more to the point, was expressly rejected due to the

financial burdens of insuring the safety of invitees against third party assaults.

The line of third party assault cases that arose after Wright bear out that the tests of the

Restatement were not being ignored but expressly rejected. It is impossible to reconcile the

Wright court’s treatment of Section 344 of the Restatement with Gulf-Reston,70 Yuzefovsky71 ,

Wright,72 Dudas73 and Klingbeil .74 Each of those cases, all with claims of notice predicated upon

a history of criminal and assaultive activity on or near the premises, specifically reject the

application of this test for invitees. Even assuming the existence special relationships, a

foreseeable risk of harm to the plaintiff was only established by contemporaneous conduct. The

Restatement requires only reasonable notice, which was decidedly insufficient to convince the

69 Id.

70 Gulf Reston, Inc. v. Rogers, 215 Va. 155, 158, 207 S.E.2d 841, 844 (1974).

71 Yuzefovsky v. St. John's Wood Apts., 261 Va. 97, 106, 540 S.E.2d 134, ___ (2001).



74 Klingbeil Management Group Co. v. Vito, 233 Va. 445, 448, 357 S.E.2d 200, 201(1987).

16



Virginia Supreme Court that the plaintiff had stated a cause of action under Virginia’s common

law.75

The same is true of the test outlined in Section 314(A) of the Restatement. Unlike

Section 344, which was only mentioned in the concurrence, Section 314(A) was specifically

cited in Wright and rejected in the body of the opinion.76 That rejection of the Restatement was

based upon analysis of the same common carrier cases relied upon in Taboada. The most

notable of those are Birchfield, and McDemmick.77 In Wright, the Court stated “in both

Birchfield and McDemmick , we held that common carriers could be held liable for negligence in

failing to intervene to protect a passenger from another passenger’s assault if an agent of the

carrier was close enough to intervene.” 78 (emphasis added). The Court also stated, “implicit in

all three of these common carrier cases is the element of notice of a specific danger just prior to

the assault .”79 The insufficiency of foreseeability as opposed to imminence was the reason the

Wright court declined the invitation to adopt section 314(A) of the Restatement (Second) of

Torts.

VI. HAS WRIGHT BEEN ABANDONED?

1. Treatment of Wright by the Federal Courts

Wright has been relied upon in two cases in the Eastern Division of the United

States District Court, Rosen v. Red Roof Inns80 and Godfrey v. Boddie-Noell

75 Wright, 234 Va. 527, 536, 362 S.E.2d 919, 921.

76 Id.



79 234 Va. 527, 533, 362 S.E.2d 919, 921 (1987).

80 Rosen v. Red Roof Inns, Inc., 950 F. Supp. 156, 159 (E.D. Va. 1997).

17



Enterprises, Inc.81 In both of these cases, the Virginia Supreme Court’s rejection of the tests

found in the Restatement (Second) of Torts (1965) was cited and incorporated into the courts’

rulings.82

A. Rosen v. Red Roof Inns

The facts in Rosen were strikingly similar to those in Taboada. In Rosen, the guest, Ms.

Rosen, was attacked, while at her car, shortly after checking into the Red Roof Inn. According

to the record, numerous assaults had occurred at the Red Roof Inn and its surrounding area.

These included two robberies of guests and at least one employee at gunpoint approximately four

months prior to the attack on Ms. Rosen. In addition, while security guards were normally

stationed at the motel, there were none working on the night of the attack. No surveillance

cameras were in use to monitor the interior or exterior of the motel. 83 The plaintiff in Rosen also

attempted to persuade the Court that because the Red Roof Inn was located a high crime area, it

provided a climate for assaultive crimes.84

The District Court analyzed the Virginia Supreme Court’s reasoning in Wright and

determined that even under an analysis that adopts the Restatement standard, the rule was still

based upon an imminent probability of harm standard.85 In defining “imminent probability,” the

district court relied upon Gupton v. Quick 86 in which the employees allowed a patron to reenter

an establishment after making specific threats against another patron who was still inside. The

81 Godfrey v. Boddie-Noell Enterprises, Inc., 843 F. Supp. 114, 120 (E.D. Va. 1994).

82

Godfrey v. Boddie-Noell Enterprises, 843 F. Supp. 114, 120 (E.D. Va. 1994), Rosen v. Red Roof Inns, Inc., 950 F.Supp. 156, 159 (E.D. Va. 1997).

83 950 F. Supp. at 158.

84 950 F. Supp. at 161.

85 950 F. Supp. at 160.

86 247 Va. 362, 442 S.E. 2d 658 (1994).

18



Court stated that Rosen was unable to provide evidence that the Red Roof Inn knew of prior

interaction between Rosen and her assailants, such as in Gupton, nor that there was reason to

believe at any given time that potential assailants were on the premises. In short, there was no

evidence of a specific imminent or currently occurring attack on a guest, and thus no opportunity

for the Red Roof Inn to intervene and prevent the injury.87

B. Godfrey v. Boddie-Noell Enterprises

The issue of creation of an atmosphere that attracted assaultive crimes was also discussed

in depth in Godfrey v. Boddie-Noell Enterprises.88 Boddie-Noell owned a Hardee’s restaurant

located in Norfolk that was reputed to have significant after hours criminal activity, assaults, and

robberies. Mr. Godfrey was attacked in the Hardee’s parking lot and brought an action against

Boddie-Noell. Godfrey alleged that because the restaurant was located in a high crime area, it

attracted or provided a climate for assaultive crimes. 89 In addressing the allegations, the Godfrey

Court stated that merely being open at a particular time, in a particular part of town with a

reputation for crime, was not tantamount to providing such a climate.90 Additionally, the Court

cited a Tennessee case that summarized its concerns when is stated that the operation of a

business in a high crime area should not be made tantamount to negligence per se. “Landowners

in high crime areas ought not to be forced out of the area or out of business altogether by an

imposition of liability to the victims of violent crimes which the police have been unable to

87 950 F. Supp. at 160. Cf, Gupton v. Quicke, 247 Va. 362, 442 S.E. 2d 658 (1994).

88 Godfrey v. Boddie-Noell Enterprises, 843 F. Supp. 114, 120 (E.D. Va. 1994).

89 843 F. Supp. 114, 118-19 (E.D. Va. 1994).

90 843 F. Supp. 114, 122-23 (E.D. Va. 1994).

19



prevent.”91 The imposition of such liability would be the equivalent of declaring the area a

condemned community.”92

2. Landlord/Tenant Cases, Wright, and the Restatement

The Virginia Supreme Court has cited, but not adopted the Restatement of Torts in

determining whether a landlord has a duty to protect its tenants from criminal assaults by third

parties.93 In Gulf Reston, Inc. v. Rogers94 the Court rejected the contention that a special

relationship existed between a landlord and its tenant.95 The plaintiff claimed that the landlord

was negligent for not preventing her rape in the apartment complex.96 The Court ruled that the

plaintiff did not have a legal claim and in doing so rejected the Restatement of Torts. The Court

referred to the Restatement only as contrast for its treatment of special relationships.97

3. Yuzefovsky v. St. John's Wood Apts.

In Yuzefovsky v. St. John's Wood Apartments a tenant brought suit after being robbed and

shot outside his apartment. He had lived in the apartment for about a year, but claimed that the

landlord had misinformed him of a history of violent assaults in the neighborhood. The tenant

91 843 F. Supp. 114, 122 (E.D. Va. 1994)(citing Nola M. v. Univ. of Southern California, 16 Cal App.4th 421,___, 20

Cal. Rptr.2d 97, 108 (1993).

92 843 F. Supp. 114, 121 (E.D. Va. 1994)(citing Cornprobst , 528 S.W.2d at 196(1975)); 950 F. Supp. at 161 (E.D.

Va. 1997).

93

Godfrey v. Boddie-Noell Enterprises, 843 F. Supp. 114, 120 (E.D. Va. 1994), Rosen v. Red Roof Inns, Inc., 950 F.Supp. 156, 159 (E.D. Va. 1997).

94 Gulf Reston, Inc. v. Rogers, 215 Va. 155, 158, 207 S.E.2d 841, 844 (1974).

95 215 Va. at 157, 207 S.E.2d at 844.

96 Klingbeil Management Group Co. v. Vito, 233 Va. 445, 448, 357 S.E.2d 200, 201(1987).

97 Id.

20



sought to establish that a special relationship, like that described in the Restatement of Torts, did

in fact exist98 and that a duty of care arose therefrom.99

The Yuzefovsky court assumed without deciding that a special relationship did exist

between the landlord and tenant.100 Thus the only issue addressed and decided by the court was

whether that relationship would give rise to a duty of care on the part of the landlord.101

Drawing on Wright , the court stated that the duty of a business owner to an invitee was

found to be coextensive with the duty of a landlord to its tenant with regard to risk of injury at

the hands of third party criminals.102 That standard, however, was described without citation to

authority, and, in fact, Section 314 (A) of the Restatement (Second) of Torts (1965), as stated in

Gulf Reston and Klingbeil , does not expressly include landlord/tenant in the list of special

relationships. Thus the issue of the relationship remained unsettled in those two cases, and was

not resolved by the court in Yuzefovsky. Essentially, the Court in Yuzefovsky ruled that if a

special relationship existed between a landlord and a tenant, then knowledge of imminent

probability of an assault could create a duty to protect the tenant.103 In that regard, Yuzefovsky

placed the cart before the horse.

The difficulty is that the special relationship between a common carrier and passenger is

not a notice-based relationship. The relationship is created when the passenger boards the

98 Yuzefovsky v. St. John's Wood Apts., 261 Va. 97, 540 S.E.2d 134 (2001).

99 261 Va. at 108, 540 S.E.2d at _____.

100 261 Va. at 109, 540 S.E.2d at _____.

101 261 Va. at 109, 540 S.E.2d at _____.

102 261 Va. at 109, 540 S.E.2d at _____.

103 261 Va. at 109, 540 S.E.2d at _____. (Assuming, without deciding, that the facts and circumstances as alleged in

the second amended motion for judgment establish a special relationship between St. John’s Wood and Yuzefovsky,

we must also consider whether those facts and circumstance are also sufficient to establish that St. John’s Wood had

a duty of care to warn and or protect Yuzefovsky against the danger of harm from the criminal conduct of a third

party (emphasis added)).

21



conveyance in question and surrenders the ability to protect himself from the risks associated

with public transportation.104

VII. THE DUTY OF CARE

While common carriers have long been held to very high standards of conduct, especially

regarding the safe transportation and deposit of passengers at their selected destinations, they

have never been declared by a Virginia court to be the insurers against all criminal acts of third

parties.105 The basis for the high standards of care imposed upon a carrier arises out of a

passenger on a common carrier relinquishing control over his own self protection once on board

a train,

106

a trolley,

107

a ferry,

108

a bus

109

a jitney

110

or a taxi.

111

At no time has the Virginia

Supreme Court ruled that a common carrier was liable for failing to prevent a non-specific risk of

harm to a passenger at the hands of third parties. Indeed, implicit in every case in which notice

of potential attack has been an issue, the events were such that notice was obtained as the

104 Connell v. Chesapeake and Ohio Ry. Co., 93 Va. 44, 55, 24 S.E. 467, 468 (1896); See also, City of Portsmouth

v. Madrey, 168 Va. 517, 526, 191 S.E. 595, ___ (1937).


106 Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879, (1906).

107 Richmond-Ashland Railway Co. v. Jackson , 157 Va. 628, 162 S.E. 18 (1932) “Of course passengers assume all

risks which are necessarily incidental to their journeys. Utmost care means no more than every care which is

practicable by carriers engaged in the transportation of their passengers.” Id ., 157 Va. at 641, 162 S.E. at ___.

108 Chesapeake Ferry Co. V. Cummings, 158 Va. 33, 164 S.E. 281 (1932); City of Portsmouth v. Madrey, 168 Va.

517, 523-24, 191 S.E. 595 (1937). “The carrier must use the highest degree of practical care for the safety of its

passengers, but it is not an insurer. Norfolk Southern R. Co. v. Tomlinson, 116 Va. 153, 81 S.E. 89 (1914). Nor is it

the guardian of its passengers. Burr v. Virginia Ry. & Pwr. Co., 151 Va. 934, 145 S.E. 833 (1928)”

109 Houston v. Strickland, 184 Va. 994, 37 S.E.2d 64 (1946).

110 Riggsby v. Tritton, 143 Va. 903, 129 S.E. 493 (1925).

111 See Carlton v. Boudar, 118 Va. 521, 88 S.E. 174 (1916).

22



unfolding event. The duty was to intervene and stop the occurring assault, not prevent it from

commencing.112

1. Virginia R. & P. Co. v. McDemmick

In McDemmick ,113 a streetcar conductor detained a passenger who had refused to

extinguish a cigar. In the midst of that detention, and unrelated to the disturbance on board, the

trolley had come off of the overhead power cable, requiring the attention of the conductor. The

conductor asked another passenger to restrain the cigar smoker while he momentarily left the

streetcar to reconnect the trolley. Upon the conductor’s return to the streetcar the restrained

passenger lunged and kicked at the conductor, but missed and struck McDemmick instead.

114

Demmick claimed injuries, and that the conductor should have been on notice of the violent

nature of the unruly passenger.

A refused jury instruction was the principal issue. The instruction read, “the court

instructs the jury that if you believe from the evidence that the injury, if any, to the plaintiff was

unexpected and inflicted at a time when the servants of the defendant were unable to protect him

therefrom, you must find for the defendant”115 (emphasis added). The refusal to read the

instruction was deemed reversible error. 116 That test contains two parts: An expectation of an

attack and the ability to intervene. The immediate history of the presence of a specific unruly

passenger who was being held for arrest did not necessarily create the expectation of that the

112

Virginia R. & P. Co. v. McDemmick , 117 Va. 862, 870, 86 S.E. 744, 747 (1915); Connell v. Chesapeake and Ohio Ry. Co., 93 Va. 44, 55, 24 S.E. 467, 468 (1896).

113 McDemmick , 117 Va. 862, 86 S.E 744 (1915).

114 McDemmick, 117 Va. at 866, 86 S.E. at ___.

115 McDemmick, 117 Va. at 867-68, 86 S.E. at ___.


23



attack would occur, 117 and being physically present and in the center of the disturbance did not

necessarily rise to the level of being able to intervene.118 Thus the duty was held to be one of

intervention, not prevention. 119 And while it remained an issue for the finder of fact, the

gravamen of the ruling was whether the carrier had the ability to control the events in question.

Indeed, the assailant was in the custody of the agents of the carrier at the time of the attack, and

still the question of ability to protect the plaintiff remained open. The plain meaning of the words

of the refused instruction, under those facts, did not leave open the issue of reasonable notice of

potential escalation of the conflict: the test was whether the carrier knew it would happen.

2. Norfolk & W. R. Co. v. Birchfield

By comparison, Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879 (1906)

illustrates the situation in which an unfolding drama does place a common carrier on notice of

imminent violence or misconduct that may be reasonably prevented. Mr. Birchfield was

assaulted for refusing to put out his pipe while on board a train owned and operated by the

defendant. Despite the ongoing and ever escalating nature of the altercation, the conductor

appeared to ignore it as he continued to collect tickets near the center of the car. 120 The

developing argument, however, was obvious enough that it drew the attention of passengers as

well as another railroad officer riding in the back of the train car. 121 The Court found that if the

preliminary argument was conspicuous enough to draw the attention of the passengers and the

117 117 Va. at 869, 86 S.E. at ___.

118 117 Va. at 869, 86 S.E. at ___.




24



more distant officer, then it created an expectation that an assault was imminent.122 Since the

conductor continued to collect tickets rather than intervening and taking the necessary steps to

prevent the developing fight, the Court deemed that the railroad had breached its duty to

Birchfield to prevent the criminal assault.123

3. Chesapeake and Ohio R. Co. v. Hibbs

The Virginia Supreme Court has also addressed the issue of foreseeability in relation to

the duty of care to a passenger. Upon attempting to enter the train lavatory, a passenger had a

finger accidentally amputated by a heavy door that slammed shut.124 The accident was the result

of the train lurching on the tracks, in combination with the failed installation of a “door check”,

which would have prevented the door from slamming. After reciting the duty of utmost care and

diligence, the Court reversed a judgment for the passenger. Despite the passenger’s evidence

that half the train cars in Virginia, and seventy-five percent of the train cars in the region were

equipped with door checks, along with the fact that the door check most likely would have

prevented his injury, the Court found no duty to install the devices.125 The railroad was not

expected to anticipate every means by which a passenger could be injured, or that it was

foreseeable that a slamming door would amputate the passenger’s finger .126

4. Additional Liability of Common Carriers

The “utmost care and diligence” required of common carriers, and liability for the

“slightest negligence which human care, skill and foresight could have foreseen and guarded



124 Chesapeake and Ohio R. Co. v. Hibbs, 142 Va. 96, 128 S.E. 538 (1925).

125 Id ., 142 Va. at 104, 128 S.E. ___.

126See 142 Va. at 102, 128 S.E. ___.

25



against” was tempered by the requirement of the opportunity for intervention and in the context

of the ability to exert control over the actors involved.127 Thus the duty of care was developed

and applied regarding the safe operation of equipment and the safe transportation of passengers

to their desired destinations.128 The McDemmick Court stated, “as was said by this court in

Connell v. Chesapeake and Ohio Ry. Co., 93 Va. 55, 24 S. E. 468, 32 L. R. A. 792, 57 Am. St.

Rep. 786, reaffirming the law as stated in Farish & Co. v. Reigle, 11 Gratt. 697, 62 Am. Dec.

666: ‘Railways engaged as carriers of passengers, while not insurers against all injuries except

by the act of God or of public enemies, as are the carriers of goods, are yet bound to carry safely

those whom they take into their coaches in so far as human care and foresight can

provide.’”(emphasis added).

Thus liability was only extended in those circumstances in which the passengers were

within the limited confines of the vehicles operated by the carrier. It is within these confines that

a common carrier was able to exercise control on the passengers, and thus to protect one from the

wrongful acts of another. Only when a passenger is wrongfully ejected from a conveyance is a

carrier liable for acts of third parties, and that liability arises out of the wrongful discharge of the

passenger from a place of safety to a place of danger. Hines v. Garrett is such a case.

5. Hines v. Garrett

127 Hines v. Garrett , 131 Va. 125, 108 S.E. 690 (1921). Hines, while it occurred off of the conveyance in question,

took place after the carrier failed to (a) deliver the plaintiff to her intended terminus and (b) arguably ejected her

from the train almost a mile from her station at near nightfall. Notice of the “neighborhood” was deemed to be of no

consequence in that decision.

128 Yellow Cab Co. v. Eden, 178 Va. 325, 337-38, 16 S.E. 625 (1941); Hines v. Garrett , 131 Va. 125, 108 S.E. 690

(1921).

26



Julia Garrett, a nineteen year old woman, was let off of a train one-eighth of a mile past

her intended station. The train had failed to stop at Seminary Station, the stop for which she held

a ticket. Garrett approached the conductor and had the train stopped about one-sixth of a mile

past her stop. Her testimony revealed that she became anxious, and the conductor became

aggravated with her. The conductor informed Garrett that she would have to go all the way to

the next station and then come back if she did not get off the train immediately. Garrett,

reluctantly decided to walk to her station and left the train at or just after nightfall.

A ravine, known by the names “Hoboes’ Hollow”, “Tramps’ Hollow”, and “Tramps’

Den” ran along the track in the area where she was let off the train. Tragically, Garrett was

accosted and “ravished” twice as she walked through the hollow from the train toward the

station. The hollow was described as “infested by hoboes, tramps and questionable

characters.”129 Garrett sued the railroad and was awarded a judgment. Her argument, however,

alleged that she had been improperly ejected from the train and therefore she retained her status

as a passenger even though she was on foot outside the car.130 Additionally, she argued that the

railroad had breached its duty to her by failing to deliver her to her station, as contracted. 131 On

appeal, the railroad sought to have the judgment overturned. The railroad denied that Garrett had

been wrongfully ejected from the train and as such she had forfeited her status as a passenger.

Thus, any duty the railroad owed to her had been forfeited.132 The court agreed, stating that such

a defense was sufficient if the proposition upon which it rested was supported by the facts.133

129 131 Va. at 132, 108 S.E. at ___.

130 131 Va. at 135-36, 108 S.E. at ___.

131 131 Va. at 134-35, 108 S.E. at ___.

132 Id.

133 131 Va. at 133, 108 S.E. at ___.

27



The Court determined that the salient issue of the matter was that railroad owed a duty to

its passenger to provide her with a reasonable opportunity to disembark at her designated

station.134 Clearly, the court ruled, the railroad, had failed in that duty. The next step of the

analysis was to determine whether Ms. Garrett was coerced or persuaded to leave the train. If so,

the court ruled, then she did not relinquish her status as a passenger. In that instance the carrier

acted at its own peril.135 The carrier’s failure to deliver the passenger to the contracted station

combined with a wrongful discharge from the conveyance, matters over which the plaintiff had

no control, and over which the railroad had complete control, created liability for whatever befell

the passenger at the place of wrongful discharge, without regard to notice of potential dangers at

that place.136

Although notice of the character of the area at which Julia Garret was discharged was

discussed, the Court specifically stated that it was of no consequence in the decision.137

Furthermore, the Court stated that Garrett was not required to establish that the railroad had

knowledge of the nature of Hoboes’ Hollow, making notice of the dangerous conditions of the

Hollow irrelevant to the Court’s holding.138 It was the positive act of wrongfully ejecting the

passenger from the train at a place other than a scheduled stop that would create liability for the

carrier, the determination of which required the remand of the matter to the trial court.139

134 131 Va. at. at 133, 108 S.E. at ___.

135 131 Va. at 138-39, 108 S.E. at ___.

136 Hines v. Garrett, 131 Va. 125, 131, 108 S.E. 690, ___ (1921).

137 131 Va. at 138-39, 108 S.E. at ___.

138 131 Va. at 138-39, 108 S.E. at ___.

139 131 Va. at 134-35, 108 S.E. at ___.

28



The above referenced theory was not by any means a novel one. It had been previously

discussed in regard to ejecting sick, intoxicated, or female passengers from common carriers. 140

The issue was never one of notice of a specific danger, but the infirmity and helplessness, even if

self induced, of the ejected passenger and the duty of the carrier not to eject such a person. 141

Unlike the failure to intervene in a developing fracas as in Birchfield and McDemmick, in Hines

the railroad failed in its duty to provide contracted-for transportation to the designated location.

Furthermore, if the carrier wrongfully ejected Julia Garrett from its train, then it would be liable

for whatever injury ultimately befell her, reasonably anticipated or not. The carrier is indeed

“bound to know the character of the place at which it wrongfully discharges [a passenger] and if

the defendant wrongfully required the plaintiff to get off at a dangerous place without knowing it,

it did so at its own peril”142 (emphasis added). Indeed, the issue of whether Julia Garrett was

ejected or not was remanded for determination, as her status of passenger was crucial to the

Court’s analysis of whether the carrier had a continued duty to her. If she was no longer a

passenger due to a voluntary disembarkation, then the carrier would not be liable for her attack,

regardless of the character of the area in which she was discharged. 143 The utmost duty of care

did not extend beyond the walls of the train car, as that was the limitation of the area of the

carrier’s control over the environment.

140 Bragg v. Norfolk R. Co., 110 Va. 867, 871, 67 S.E. 593, ___ (1906).

141 Houston v. Strickland , 184 Va. 994,1004, 37 S.E. 2d 64, ___ (1946).

142 Hines v. Garrett , 131 Va. 125, 139, 108 S.E. 690, ___ (1921).


29



VIII. THE LEVEL OF CONTROL

Control is one constant throughout cases involving the liability of a business owner to

third parties. The law appears to impose a duty commensurate with the level of control one has

over a given situation.

Common carriers are vested with a high degree of control over their passengers, and thus

have an elevated duty of care.144 Passengers repose their care and safety with the railroad while

they sleeping or when confined to the cars of the train. 145 This level of control, to an extent, is

the logic behind the duty created in Taboada. The majority in Taboada discussed the “direct and

continued control of the property” in contrast to the lesser control that a landlord exerts .

146

In

other contexts of liability for acts of third parties, the Virginia Supreme Court has drawn on the

issue of control. For example, control proved to be the primary issue when a deputy sheriff

failed to stop an attack on a witness to an accident, 147 a half way house failed to control one of its

residents,148 or a patient in a mental hospital attacked a fellow patient.149 By contract, in cases in

which control was not invested in the defendant, no liability would attach.150 This ability to

control formed the basis of the distinction between the landlord-tenant cases distinguished in


145 Connell, 93 Va. 44, 55, 24 S.E. 467, 468.

146 Taboada v. Daly Seven, Inc., 271 Va. 313, 626 S.E.2d 428 (2006).

147 Burdette v. Marks, 244 Va. 309, 421 S.E.2d 419, (1992).

148 Dudley v. Offender Aid and Restoration of Richmond, Inc., 241 Va. 270, 401 S.E.2d 878 (1991).

149 Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 523 S.E.2d 826 (2000).

150 Nasser v. Parker , 249 Va. 172, 455 S.E. 502 (1995); Yellow Cab Co. v. Eden, 178 Va. 325. 338, 16 S.E. 2d 625

(1941)(“It was not the duty of Mrs. Eden to direct and control the driver nor to keep a lookout for approaching

cars…It would be a dangerous rule indeed to require that the passenger of the taxicab direct its driver how to operate

the cab”); Marshall v. Winston, 239 Va. 315, 318, 389 S.E.2d 902, ___ (1990).

30



Taboada.151 Even as in Hines where Garrett retained authority over her own person and had

been forced from the train to a place of danger, the carrier remained liable.152 As implied in

Hines, the carrier would not have been liable for the attack on Garrett had she been dropped at

her station, as contracted.153

Furthermore, railroads were given authority commensurate with being a quasi-

governmental entity. In Birchfield , the Court reasoned as follows:

The conductor has the power, and it is his duty, to preserve order on the train; if necessary,stopping the train and calling to his assistance all the train employees and such passengers as

are willing to assist him. Until, at least, he has put forth the forces at his disposal, he has no

right to abandon the scene of conflict. In order that conductors may be clothed with authority

commensurate with their duty, they are in this State made conservators of the peace by Code,1904, section 1294d, clause 10. In the case at bar the conductor was derelict in the discharge

of his duty, and the carrier is liable154

Thus, railroads and common carriers are clothed with municipal authority over the

passengers who relinquished rights in order to make use of the conveyance offered. An

individual who has been asked to remove a shoe, dump out a bottle of water, or leave a pair of

nail clippers in the trash in order to board an airplane is aware of such relinquishments. Once on

an airliner, a small indicator light tells one when to stand up, use the restroom, or even unbuckle

a seatbelt. If one smokes in the airplane restroom, one must be prepared to meet with the United

States Marshals upon arriving at a destination. Federal pre-emption aside, these examples could

not have been foreseen when Birchfield, McDemmick, Connell, and Hines were decided.




154 Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 823, 54 S.E. 879, ____ (1906).

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However, they illustrate the type of authority which the Courts at the time deemed a fair

exchange for an elevated level of care toward the passengers in their charge.155

As was alleged in both Wright and Taboada, motels can install cameras, lights and

fences, and hire security guards, as can any business that allows invitees onto its premises. But,

motels cannot control the ingress and egress, neither in frequency nor in time of day, of its

patrons. The resulting duty of an innkeeper, under the analysis in Taboada, is much broader. An

innkeeper cannot exercise that type of control over its guests. The issues of ingress and egress

and of the burden of limiting access by trespassers certainly resemble the logistics of the railroad

station. Additionally, there is no quasi-governmental power reposed in a motel in Virginia.

Hines, which the Taboada Court relied upon for the premise that a carrier is deemed to be

on notice of the areas around its railroad tracks, was distinguished as inapposite in Wright . Not

because Wright was a common carrier case, but because it involved an affirmative act of

negligence in ejecting a passenger from a place other than the scheduled destination.156 There

was no suggestion, either in Wright or Hines that had the attack against the Hines plaintiff taken

place at a designated stop that the railroad would have been responsible for the attack. In fact,

Hines was remanded because of the trail court’s failure to give an instruction which would have

exonerated the railroad for the attack, had the plaintiff voluntarily disembarked from the train.

Notice of the railroad concerning the environment was not the issue. Rather, it was whether the

plaintiff had maintained her status as a passenger. If she had, the railroad breached its duty of

care by the affirmative act of ejecting her from the train.


156Wright v. Webb, 234 Va. 527, 533, 362 S.E.2d 919, ___ (1987).

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A subsequent issue for review is the creation of the artificial distinctions that now arise.

For example, when exactly is one considered a guest? Would the fact that Mr. Taboada had just

checked out of the motel, instead of in, created a different outcome? What about a guest of a

guest? The dissent in Taboada offered other hypotheticals, as well as a case against the ruling.

An innkeeper can control the interior spaces of a facility, just as a common carrier can control

the inside of a passenger car. A trespasser walking the halls of a motel certainly carries a

different connotation than a trespasser walking across the parking lot. It is much easier to

control the interior of a facility as opposed to open spaces.

The issue of control is directly associated with the ability of a property owner to

intervene, as in Birchfield and Gupton. In arguing the permutations of Taboada that will arise at

a future time, the best approach is to focus on control and intervention. As the Virginia Supreme

Court stated in Gulf Reston, “in determining whether a duty exists, the likelihood of injury, the

magnitude of the burden of guarding against it, and the consequences of placing that burden on

the defendant must be taken in account.”

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